Category: FOFOC Briefing

Each month we will send you an update on progress with our aim of holding the statutory authorities and regulatory bodies to account for the environmental protection and sympathetic development of the Hunterston Peninsula and the surrounding marine environment of the Firth of Clyde.

**BREAKING NEWS**

Scottish Natural Heritage (SNH) advised an Environmental Impact Assessment (EIA) should be requested before planning permission for decommissioning was granted

The FOFOC submitted a request for information under the Environmental Information (Scotland) Regulations 2004 (‘the EIRs’) via MSP Ross Greer of the Green Party, asking ‘what discussions SNH have had to date with North Ayrshire Council regarding the need for an EIA for this project, what advice was given to the council by SNH, whether discussions were documented and what the outcome was?’

The written response we have received is unequivocal that SNH advised an EIA was required, and states that:

“We (SNH) attended the screening meeting at the Hunterston site on 23 January 2017. At the meeting we expressed the opinion that due to the scale, the introduction of new processes and complex nature of the entire project, that it would be sensible to request the production of an EIA. The structure of any EIA could be scoped to narrow down the range of environmental factors and impacts being considered. At the conclusion of the meeting the Council indicated that they would consider the change of use application for the yard without an EIA of the entire project. This meeting was not minuted, and North Ayrshire Council decided that an EIA would not be required.”

Jargon Buster: You can find out more about what an Environmental Impact Assessment (EIA) is and why they need to be done by looking at this Friends of the Earth Fact Sheet.

What else have we been doing?

LEGAL CHALLENGE

With funding raised through GoFundMe we have engaged the services of Douglas Armstrong QC of Terra Firma Chambers, who has an excellent reputation in the field of planning and environmental law. Douglas has provided FOFOC with a detailed legal opinion highlighting the significant flaws in the processes that led to the decision of North Ayrshire Council (NAC) to not require an EIA prior to agreeing the addition of decommissioning to the existing planning permissions. The 3 month time bar for appeal against the NAC decision means we have to look forward with our strategy and this involves preparing to challenge the next stage of licence application to Marine Scotland, with the ultimate aim of taking the legal challenge for an EIA as far as possible in the year ahead.

RAISING FUNDS

Gofundme

The harsh reality is that we need on-going financial support to continue our legal challenge. Thank you to everyone that that has donated to date, every penny helps and every donation will help us in our mission.

Donations can be made online on our GoFundMe Page: https://www.gofundme.com/7ujhe-save-our-marine-lifeor contact secretary@friendsoffirthofclyde.orgfor information on other ways to donate.

Fund Raising Events

Over the coming months we will be organising a number of fundraising events.

Our first fundraiser will be the FOFOC Burns Night Event on 25th January 2019 at the Village Inn, Bay Street, Fairlie. Tickets cost £20.00 per person and include a three-course meal and an auction of donated prizes. Tickets are selling out fast and will be offered on first come first serve basis, so be quick with your bookings.

If you would like to reserve a ticket please contact secretary@friendsoffirthofclyde.org

We have sent and received a range of correspondence to regulatory bodies and statuary authorities, including:

Marine Scotland (MS)

We have sent a letter stating our objections in advance of the publication of the Marine License Application to MS, and formally asking for them to send us notice of the application when it is published.

Scottish Environmental Protection Agency (SEPA)

We have sent a series of letters to SEPA outlining our concerns regarding the material changes outlined in the Waste Management Licence (WML) application – including the use of roads to transport waste; inadequacy of the noise assessment; and the inclusion of the Clydeport Coal Jetty for receipt of rigs and removal of materials for which there is explicitly no planning permission in place.

Importantly, FOFOC highlighted that the NAC planning permission was granted on the assumption that all environmental risks would be mitigated through the application for a Pollution Prevention Control (PPC) Permit and would be open to public scrutiny as part of the process. A WML is a the type of licence a scrap car dealer would apply for and does not require public consultation.

North Ayrshire Council (NAC)

We have met with and made representation to the NAC planning committee outlining our concerns, as outlined above, about the WML application and called on them, as a statutory consultee to the WML application, to recommend that an EIA be requested before the application moves forward.

Spread the word and ask your friends, colleagues, neighbours and family to support the Friends of the Firth of Clyde to make our voice even stronger.

You can follow the Friends of the Firth by joining our Facebook group https://www.facebook.com/groups/NORIGSINFAIRLIE/

We are gravely concerned about the approval processes which have circumvented environmental assessment and regulation. Our concerns have been confirmed by senior legal counsel, who has reviewed the planning “paper trail” for us.

This project involves significant dredging, pile driving, breaking up of 1000’s of tonnes of hazardous waste, including asbestos and radioactive materials, CFCs and the management of rotting marine matter.

The decommissioning of the hazardous materials just 1km upwind from Fairlie could result in serious health impacts.

The area proposed for the development is a designated under Nature Conservation Scotland Act 2004 as a Site of Scientific Special Interest (SSSI). The SSSI is designated for its sand flats and saline pools. Under that Act, it is an offensive for anyone to damage the notified features of a SSSI. The development will dredge half a million tonnes of sediment and destroy the SSSI’s notified feature.

The SSSI is home to several OSPAR (Oslo/Paris Convention) Priority Marine Habitats and Species including rare molluscs and eelgrass beds. Under international agreement any threat of development to these PMF’s must be considered a significant environmental impact of national importance.

Research on the coastal waters (Cumbraes Marine Consultation Area) adjacent to development site indicates persistent hotspots for European Protected Species and are a critical habitat for harbour porpoises. The famous solitary common dolphin ‘Kylie’ is resident within 500m of proposed the pile driving and construction site.

All public bodies and officers have a duty to conserve biodiversity and uphold environmental legislation. North Ayrshire Council, SNH, SPEA and Marine Scotland are failing their legal responsibilities, the environment and surrounding communities. A Legal Opinion was sought from a leading Environmental Advocate QC who concluded that there have been serious flaws in the Public Bodies environmental decision-making processes.

For the purposes of obtaining planning permission the site has been divided into small subsections to avoid critical scrutiny. A project of this complexity should have an Environmental Impact Assessment – which would assess the full impact to a protected area and be the minimum that Peel Ports should be willing to do in an area of outstanding beauty and environmental importance.

We challenge the enormous use of tax payer’s money on this venture.

Although rumoured to create 100’s of jobs, all other decom sites and industry experts indicate 25 to 50 jobs.

£10m is the first phase of the development. We feel an investment of this magnitude would be better spent advancing sustainable green industry that can sit alongside the tourism industry, the largest employer in North Ayrshire. Its is also stated that this is the first phase of investment, so we question how much government money could eventually be spend on this.

Since 1974, accounting for inflation, a present day value of ~£1bn of public monies has been spent at Hunterston on failed industrial projects, netting no more than 100 jobs for a short number of years.****

There have been many investigations into Peel tax arrangements over the years, they pay significantly less corporation tax than might be expected.

The planning processes have been biased towards the developer and have given little to no consideration for residents and business which will be impacted by the development.

Decisions were made during the planning approval on the clear understanding that environmental concerns would be addressed when Peel Ports applied for a Pollution Prevention Control licence from SEPA, a process open to public consultation. They have not done this but applied for a much less vigorous Waste Management License (WML) which does not require public consultation.

All representations made by the developer to interested parties including North Ayrshire Council pre-planning permission were on the basis that decommissioning waste would be removed by sea and rail, with negligible effect on local roads. The WML application shows otherwise. The road infrastructure is totally unsuited to the proposed increase in heavy traffic.

There are gross geographic scope anomalies between the area zoned for the planning permission and the SEPA application. Both the SEPA application and marketing videos demonstrate a much broader use of the Clyde. It has been consistently denied, even at public meetings, that the Hunterston Coal Jetty would form any part of the decommissioning project. The Waste Management Licence application clearly shows that it will be an integral part of the project. This will create even greater levels of noise and pollution directly affecting many homes. The Noise Assessment report which was relied on when planning permission was granted did not take the use of the Coal Jetty into account as the Coal Jetty is NOT included in the planning permission for the decommissioning. Therefore i) the Noise Assessment report is incomplete which is wholly unacceptable and ii) the Developer does not have planning permission for an essential element of their project.

The approval of this planning consent will have a significant impact on residents, businesses and the environment. However, it is difficult or impossible to access information about the development. Peel Ports have not been forthcoming with any information. Residents have had to resort to Freedom of Information Requests in order to try to understand the magnitude of this project.

Peel Ports dominate the Clyde having both interest as a private industry and as the port authority. Having board seats as both the Clyde Port Authority and as Industry on a number of quangos is certainly questionable.

Friends of the Firth of Clyde do not consider this to be a good investment for the people of Scotland. Laws put in place to protect the environment and residents must be adhered to. Jobs are welcome, but safe sustainable jobs with concern for the broader North Ayrshire economy and environment.

On November 14th 2017 Patricia Gibson MSP participated in a debate on the Marine Environment in the Westminster Parliament. It is interesting to look back on this speech and relate to to the current proposals by Peelports to develop an oil rig decommissioning port at Hunterston. It would be great if Patricia could support her constituents requests for an EIA and help inform marine management decisions about a protected SSSI habitat located just a short distance from her constituency office?

“I thank the hon. Member for Huddersfield (Mr Sheerman) for securing this debate. As we have heard today, we do not own the, seas; we are simply caretakers of them. It is important that we bequeath a rich and healthy marine environment legacy to future generations, and do so to the best of our ability. Some progress has been made. The UK and Scottish Governments are working together, as we heard earlier, to deliver on a commitment to implement a ban on microbeads in personal care products to tackle the scourge of microbead pollution.”

“Marine protected areas have now been established in waters around the United Kingdom with the Scottish marine protected network covering around 20% of the seas around Scotland. Those protected areas are important since this means that any proposed development or use of such areas will have to take into account the need for recovery.”

“Scotland’s seas are a vast and rich natural resource. It is our sacred duty to keep them healthy and protected for current and future generations. Much of our coastline and surrounding seas are globally important habitats ​for many bird species, providing food, a place to rear young, and winter refuge. The future of our marine environment must be sustainable for our precious yet vulnerable marine habitat. The national marine plan in Scotland was adopted in March 2015 and provides a framework for consistent decision making that takes account of the marine environment. Work is now ongoing to implement marine planning on a regional scale.”

“Marine protected areas provide additional protection to important locations in our seas, and the network covers 20% of our marine area. The marine protected area monitoring strategy monitors and surveys some of Scotland’s most vulnerable marine habitats. It ensures that detailed information is collected from the marine protected area network to create a more accurate picture of the health of marine environments. In addition, the Scottish Government launched Scotland’s first ever marine litter strategy for Scotland, which details almost 40 new actions to minimise coastal and marine litter. Yet the challenges we face are ongoing.”

The fish farming industry has admitted that it has to discard significant numbers of its stock because of disease. Some are now calling for a shift to a closed containment system that would protect the fish and the marine environment. The same demand has been made by the wild fish campaign group, Salmon & Trout Conservation Scotland. That seems at least worth examining. Fish and shellfish farming contribute £620 million to the Scottish economy every year, supporting more than 12,000 jobs. We have a duty to protect Scotland’s marine environment, and the health and welfare of farmed fish is of utmost importance to the industry. The Scottish Government are committed to working with the aquaculture sector to develop a strategic health framework that ensures we make progress in tackling major problems, including emerging disease. That is essential for the future and sustainability of our marine environment.

“There is also concern about the need to protect vulnerable habitats from scallop dredging. Indeed, an investigation by the Scottish Government and Scottish Natural Heritage into claims that the vulnerable habitat in Loch Carron had been damaged by scallop dredging has confirmed that damage to the flame shell beds was consistent with the impact of scallop dredging. Subsequently, the endangered sea bed habitat of the north-west coast was designated as a marine protected area by the Environment Secretary, Roseanna Cunningham MSP. The investigation found there was a viable prospect of recovery because part of the bed had survived and another bed had thankfully remained intact. It is right, as I mentioned in the House today, that such matters are investigated comprehensively and that all options are considered to militate against such an occurrence in the future, in the light of the damage and marine devastation it can cause.”

However, the marine environment does not recognise borders or boundaries. It is essential that all Governments across the United Kingdom work together co-operatively to ensure that the health and sustainability of our waters and marine life are secured. Our marine environment is extremely important. We must be able to enjoy the benefits that the sea offers us, but we must also respect the need for sustainable use. We owe that to future generations.​

Green MSP Ross Greer has written to Government agencies asking them to listen to the concerns of communities around Hunterston after a licence application was submitted to allow the decommissioning of oil rigs near to a Site of Special Scientific Interest.

Peel Ports were given planning permission by North Ayrshire Council in spring this year, despite concerns that a full Environmental Impact Assessment (EIA) had not been required by the council and there being clear impacts on the Southannan Sands Site of Special Scientific Interest (SSSI). At the time, the council claimed that concerns about pollution from the operation were the responsibility of the Scottish Environmental Protection Agency (SEPA), the Scottish Government agency whose licence is required for the decommissioning facility to operate. A licence for dredging work necessary to the decommissioning is also required from Marine Scotland another Scottish Government agency.

A licence application was submitted to SEPA for a Waste Management Licence on 4th October, but SEPA have confirmed to Ross Greer that when they consider the evidence, the only consultees will be North Ayrshire Council and the Health and Safety Executive, not local residents or conservation groups. Ross has also written to Marine Scotland asking what provision that have made for consultation.

Ross Greer, Scottish Green MSP for the West of Scotland commented:
“While decommissioning oil rigs is both essential to tackling the climate crisis and to job creating in Scotland, there’s nothing green about doing that without properly assessing the impact on the local environment, not least when it’s a recognised ‘Site of Special Scientific Interest’. And it’s simply unacceptable to hold a ‘consultation’ which does not consult the local community or relevant conservation groups.

Residents have written to me with very real concerns about the environmental impact of dredging, noise disturbance, the visual impact of bright lights after dark and of course the severe risk of pollution getting into the air and the Clyde and damaging the health of people and wildlife. At first they were told by the council that these aren’t relevant and now SEPA aren’t asking for residents views.

“I’ve already had a response from the Scottish Government giving reassurances that required steps will be taken to prevent damage to the environment, but a full assessment must include the views of those who know the area best, the local residents. I’ve written to SEPA and to the Scottish Government to outline the concerns of constituents and would encourage people to contact SEPA via their website at www.sepa.org.uk and to Marine Scotland at marinescotland@gov.scot demanding that their views are taken into account.”

This document has been produced on behalf of Friends of the Firth of Clyde (FOFOC)* in response to the submission of Clydeport Operations Ltd to SEPA for a Waste Management Licence. We ask that the Health and Safety Executive and SEPA take note of this during their vetting of the application.

FOFOC are extremely alarmed by the application for a simple Waste Management Licence. We firmly believe that the project is part of a wider salami sliced planning approach to avoid full scrutiny of the complexities and risks of bringing unprecedented amounts of highly toxic waste to the Firth of Clyde. The group firmly believe that the scale and nature of the toxic materials involved in the project should have required approval under the Pollution Prevention and Control Licensing process. Indeed, all previous planning documentation references a PPC licence and the opportunity for consideration of the complexity and risk during this process.

Although formally the Waste Management Licence approval process is not open to public scrutiny, we feel so strongly about the risks that it is our public duty as a group of concerned residents, to put forward our concerns and to highlight the perceived lack of due diligence and openness from certain regulators and government bodies.

*FOFOC are group of over 1,400 residents with a long history of neighbouring Clydeport Operations Ltd.

Health and Safety Reporters

This analysis has been carried out by two former Health and Safety Managers/ Engineers/ Practitioners/ Auditors with a collective experience of 30 years at senior level. Both have worked in large quality organisations and have been involved in health and safety auditing and consultation.

We have taken a view of the likely hazards presented by the proposed oil and gas decommissioning facility and the enormous quantities of organic and inorganic waste material which is to be handled. This information has been obtained from the documentation provided by Clydeport Operations Ltd. as part of their application for a Waste Management Licence.

In our view this is an operation presenting significant risk to the Health and Safety of those involved in the activity, those visiting the site, those involved in transport and handling of materials, those responsible for re-cycling and disposal of the resulting materials and for local people in the vicinity of the site.

Given this level of risk we conclude that a robust, high quality Safety Management System is essential to control the proposed activity and we would expect this to be provided to the relevant licensing authorities as part of the application process.

Assessment:

3.1. The only document which makes any mention of the possible existence of a Safety Management System is in the Working Plan written and submitted by Enviro Centre on behalf of Clydeport Operations Ltd as part of the SEPA Waste Management Licence.

3.2. They refer to the existence of a Safety and Environmental Management System used by Clydeport in their role as Port Authority. The documentation relating to this was not displayed or referenced in the Working Plan.

3.3. Examination of documentation accessed from internet searches, identified the Peel Ports Group Ltd. Marine Safety Management System. Whether this is the document alluded to by Enviro Centre in the introductory section of their Working Plan is not clear. In section 1.3.1 this Peel Ports MSMS document states “This document describes the Peel Ports Group Limited Marine Safety Management System (MSMS) for marine operations in the Ports of Clydeport, Ardrossan, Great Yarmouth, Heysham, Liverpool, Manchester and London Medway. It has been compiled in line with the PMSC and the Guide to Good Practice on Port Marine Operations.” In our view it is essentially for marine related port activities and as such does not cover the on-site Decommissioning activities defined in the licence application.

3.4. No evidence could be found for the existence of a policy document covering these land- based decommissioning and related activities.

3.5. The Working Plan produced by Enviro Centre includes the Port Emergency Plan as Appendix C.

This document is concerned solely with the procedures and processes which should be followed in the event of an emergency within the port area involving marine activities. In our view this Port Emergency Plan does not address the likely emergencies which might arise as a result of the Decommissioning activities at the Hunterston Marine Services Centre.

3.6. The whole documented submission to SEPA for the Waste Management licence fails to identify any clear lines of responsibility for the management and control of the intended activities. The licence form section 2.10 regarding Site Operator states “Decom operator to be confirmed”. The Working Plan produced by Enviro Centre states in its introduction that the Plan details who is responsible and the lines of communication between Clydeport and the operators of the site. In our view there is a complete absence of any line of responsibility for the Health and Safety aspects of the operation:

There is no named operating company.

There is no organisation chart showing responsibilities.

There is no clear interface control system between marine and land-based activity.

There is no clear interface for emergency control between the decommissioning activity and general port activity.

There is no evidence for the existence of a Safety Management System in the decommissioning company.

3.7. In conclusion, The Reporters are dismayed that the whole plan demonstrates no ownership and appears to be a desktop exercise to satisfy the information requirements of the WML. The Working Plan was written and submitted on behalf of Clydeport Operations Ltd. by Enviro Centre, an office based environmental consultancy. Further, we express great concern over who will control this site and hold the appropriate licences to operate.

Planning approval implications

5.1. In view of the above concerns and given that health and safety regulations constantly change due to experience and epidemiological studies, it is considered that an Environmental Impact Assessment is required.

5.2. A catastrophic release of toxic waste or the rise of an epidemiological cluster would lead to an inquiry of the Regulating Authorities’ “due diligence” if this aspect had been overlooked because of a flawed planning process. Generation of base line data for the health status of employees is required for ongoing monitoring and for determination of any causal effects. This is particularly critical given the quantities of asbestos which are to be handled and it is also required for the health monitoring of workers exposed to the high quantities of heavy metals described in the licence application.

Competence of applicants and unknown decommissioning operators

This is a dangerous scenario, where the applicants perhaps do not fully understand the ramifications of the effects of the hazardous products and the quantities of such products that they are proposing to handle at this site.

Clydeport Operations Ltd. and its un-named contractor/s are proposing to handle extremely toxic waste in enormous quantities. This is a high-risk activity. No clear evidence of the competence of either party has been provided other than the inclusion of two named individuals employed by Clydeport Operations Ltd at a different location.

Absence of evidence of adequate safety management systems

7.1. We firmly believe that there is fundamental failure within Clydeport Operations Ltd. to adequately oversee safety management systems. Examination the safety culture of the parent Peel Ports Group and as evidenced by the poor attention given to Health and Safety in the Annual Strategic or Directors reports which form part of the Annual Financial Return of the Group. We also offer a higher-level reasoning for consideration.

7.2. The Reporters of this document have worked in organisations that have striven to be best in class and were, and are, amongst the best Health and Safety operators in the UK. Their organisations have received numerous high level ROSPA awards and won the internationally recognised premier performance award for occupational health and safety the ‘Sir George Earle Trophy’.

7.3. In our view Clydeport Operations Ltd. should aspire to reach these highest values but given their current performance level we would expect this improvement process to take of the order of five or more years to achieve. This improvement process of course assumes total commitment from the very top of the organisation and the provision of the resources, both in terms of manpower and finances, needed to effect the change.

7.4. It is well established that Good Health and Safety equates to good quality and high productivity. This leads to profit, highly effective organisations and reputational enhancement. Whether Peel Group has this level of commitment remains to be seen.

7.5. In our opinion the ownership and structure of the Peel Group does not lend itself best placed to achieve the highest Health and Safety performance.

7.6. This vast company of around 400 subsidiary and holding companies is in private ownership. This is an extremely unusual circumstance for a company of this size. The individual private shareholder has 75% of the equity of the business, the remaining 25% being foreign (Saudi) owned. The organisation is effectively a fiefdom. This is a very critical observation when considering the culture of the company and its attitude to Health and Safety. There are effectively no shareholders to hold the organisation to account. This places higher demands upon external regulators for maintenance of standards.

7.7. We believe, like most seasoned Health and Safety practitioners, that:

Safety starts at the top

The culture comes from the top

From observation of the activities of the Group we believe that the business culture is ruthless and as a result successful. Generally, the Group is very adept at studying the rules within which it wishes to operate and then exploits these rules to gain maximum competitive and business advantage. In addition, the Group appears to actively constantly seek means to navigate around the rules, while staying within the legal framework. These cultures may be seen by some as admirable and part of the competitive business sphere. The Group has also been very successful at gaining approval of people at the highest level within the UK. Again, this may be regarded as extremely astute in a business or influencing sense. However, this approach when present alongside efforts to develop a good Health and Safety Culture may be seen to present an almost impossible obstacle to achieving success in the latter.

The Safety Message from the top must be clear. The aim should be to do better than the legislative targets. Safety rules should not be circumvented in any circumstances.

7.8. In order to provide some insight to the above observations on where Health and Safety lies in cultural importance in Peel Ports Group, we have examined the Annual Financial Returns for the company over the past ten years and extracted the following information:

This was the Directors Report for the financial year in which three people were drowned as a result of the sinking of the tug “Flying Phantom” in the Clyde and for which accident Clydeport Operations Ltd. were later prosecuted, found guilty and fined £650k. It might have been expected that although the Annual Report had no Health and Safety section, an amazing omission in its own right, a special section would have been added to at least acknowledge this tragic loss of life. None was provided.

Report for year ended 31 March 2011
Directors’ Report Principle Risks and Uncertainties No Health and Safety Report

Only a set of standard words which tacitly accepts that accidents will occur.

Report for year ended 31 March 2012
Directors’ Report Principle Risks and Uncertainties Same wording as 2011 except removed the word “totally”.

Report for year ended 31 March 2013
Directors Report Principle Risks and Uncertainties

No Health and Safety Report

No Health and Safety Report

A changed set of words but not a report

Report for year ended March 2014

Strategic Report Principle Risks and Uncertainties No Health and Safety Report Same wording of standard statement given in 2013 but relevant section of report now called Strategic Report in place of Directors Report

Report for year ended March 2015
Strategic Report Principle Risks and Uncertainties No Health and Safety Report A bald statement of the fatality and immediately a repetition of the tacit acceptance of accidents happening.

Report for year ended March 2016
Strategic Report Principle Risks and Uncertainties No Health and Safety Report A statement which seems more concerned with the monetary aspects of the fatality than explanations of the causes and specific measures being taken to prevent recurrence.

Report for year ended March 2017
Strategic Report Principle Risks and Uncertainties No Health and Safety Report During this Annual Financial Report there is a more substantive section covering Health and Safety and the stated intentions of the Group.

This at last is a first recognition of what might be wrong with the Health and Safety approach which has been adopted to date. This should be the start of a journey for the Group, a journey which will take several, approximately 5, years to deliver the required Health and Safety performance.

It is worrying to note that the Report for the year ended March 2018 is not yet visible on the Companies House Site and therefore no information is available to form an opinion on the progress or otherwise of the Health and Safety improvement process described in the March 2017 Annual Financial and Strategic Report.

7.9. In all of the Directors or Strategic Reports studied, Health and Safety was very poorly reported. No data on performance was provided. The topic, where considered at all, was well down the priority list in the order of reporting with financial and other business aspects taking precedence. Health and Safety did not even merit the first position in the Operational section of the report. This is typical of organisations which have a poor Safety Culture. This analysis indicates that the current Peel Ports organisation, of which Clydeport Operations Ltd. is a part, is not, in our view, a fit and proper entity to adequately control the hazards and risks presented by the decommissioning proposals.

7.10. In our view the following features are what should be present in a high performing company with the correct attitude to Health and Safety.

High performing companies build these items into their Safety Management System

1

Executive safety site visits

2

Safety Advisor safety inspections

3

Risk analysis (Generic and Local)

4

Analysis of accidents. Their number, type and root causes

5

Effective and quality H&S communications

6

Safety Targets Company- wide and Local

7

Aspiration to gain safety awards

8

Health and Safety being a primary standing agenda item at all business meetings

7.11 This list is not exhaustive but demonstrates the difference between what Clydeport Operations Ltd. has presented and the approach of high-performance companies. It also demonstrates that high quality companies see compliance with Health and Safety Regulations merely as the base line. High performing companies seek to reduce risks and incidents further to achieve levels which are “As Low as Reasonably Practicable” (ALARP).

7.12 The Clydeport Hunterston Marine Services Proposal involves the handling and storage of immense quantities of special waste and requires the carrying out of numerous hazardous activities. Given the analysis of the readiness of the organisation to carry this out in a safe manner leads us to the conclusion that the likelihood of a catastrophic release is high.

Working plan submitted by Enviro Centre Ltd

8.1 Although some effective work has been done in compiling this document, the Reporters feel that it is just a desk top exercise with no discernible long-term links to the licence applicant, Clydeport Operations Ltd. The Working Plan appears to be merely a document produced to meet the regulatory requirements of the Waste Management Licence.

8.2 One of its major weaknesses is the absence of an “Organisation and Operations” chart. There are no named implementers of the activities listed or of the relevant Duty Holders.

8.3 Working Plan Weaknesses and Omissions

1

Organisation chart and duty holders

2

Policy statement and commitments

3

Record keeping and control

4

Communications

5

In house Safety Rules

6

Safety Inductions

7

Risk assessment process

8

HAZOP studies

9

Appointment of competent safety advisors

10

Accident investigation near miss reporting

11

Statutory work equipment inspection

12

Compliance with CDM

13

Inspection, training and lifespan of PPE

14

Site specific Safety Rules

15

Compliance with COMAH Regulations

Hazard identification and procedural deficiencies in the working plan

9.1 Concrete pad strength – The project requires hard standing for storage of large assets, sections of assets and other waste materials. The proposal may be fatally flawed by a failure to carry out geological and hydrological assessments. From the Waste Management Licence application, it is indicative that a constant waste of the order 150,000 tonnes will be stored at any one time. The storage of this material is shown as taking place on the surface of the site surrounding the existing dry dock. This comprises land reclaimed forty years ago from the Hunterston and Southannan Sands. The base soil type is known to be poor and there is an amalgam of soft clay and sand.

In the absence of geological and hydrological survey data it is not possible to confirm that the structural strength of the concrete pad, which will require to be constructed to accommodate the high loadings required for storage, will be adequately supported by the existing substructure.

9.2. Fire – Although there is an emergency plan, the nature of the “Business Organisation” does not show training requirements, equipment and the likely risks to first responder staff and “Others” from contact with special wastes engulfed in the flames/explosions. This needs to be re-visited urgently.

9.3. Asbestos – The quantity of Asbestos (no types specified) is very concerning. The request in the Waste Management Licence for 1,000 tonnes to be held at any one time, combined with a weak Safety Plan, has the potential for an event resulting in the catastrophic release of airborne friable fibres, and exposing employees, contractors and others to serious risk. A Generic and a Local Risk Assessment should be carried out. Links to a laboratory for identification of samples are not provided. Knowledge, experience and strict compliance with the Asbestos regulations of 2012 are required and no evidence of these aspects is presented in the Working Plan.

9.4. Demolition Waste Creation – The hot cutting of steel from the assets to be decommissioned will create a residue that may be hazardous and/or toxic with steel swarf, paint finishes and organo-tin antifouling being present. The likelihood of this fine waste entering the marine environment is high due to the location of this activity. Clydeport Operations Ltd.’s reputation and past performance on environmental controls is poor. Photographic evidence can be supplied to show a total lack of compliance when undertaking coal operations. Although there is a plan showing a dual pump and filtration unit, there are no budgetary notes or completion dates for the provision of these facilities.

9.5. Marine Growth – With a declared storage of 2500 tonnes of marine growth at any one time there is a high probability of obnoxious smells, and the potential for self-heating and ignition if the material is stored in bulk. The safety plan calls for the use of sprinklers to control the odour problem, but past similar control measures to prevent coal stockyard fires were not satisfactorily managed by Clydeport Operations Ltd. There may also be a problem with scavenging seabirds which has not been addressed in the Working Plan.

9.6. Polychlorinated Bi-Phenyls – These carcinogenic compounds are to be stored in quantities up to 25 tonnes at any one time. The risk to humans and other creatures in the environment is quite destructive. PCB’s have extremely long lives, are difficult to neutralise, and are easily absorbed into the food cycle and into living organisms. The Working Plan indicates that all PCB’s will be stored in bunded areas but provides no further indication of the measures required to control these persistent materials and the procedure to be followed in the event of a release of the material from its container or failure of the bunding arrangement.

9.7. Accidental Contaminant Release – The Working Plan to control effects of Accidental Contaminant Release, are, in our view, lamentable. This is a major risk of the highest order, and the plan essentially calls for employees to run around with sacks of sand to control any spillage. This section will have to be revisited by trained and experienced practitioners who can give effective advice. Full bunding of all identified risk areas is recommended.

9.8. Heavy Metals – These may, in certain cases, be special waste with severe health implications for humans, flora and fauna. Heavy metals will be extracted from “Battery Shacks” and this is stored to a maximum of 1,000 tonnes per year. The movements of the batteries will need to be closely monitored. The Working Plan makes no reference to the need for occupational health screening of operators who are exposed to heavy metals. This is required in order to establish a baseline and to provide continuous monitoring of blood levels of metals to ensure containment methods and PPE used are preventing bio-accumulation of metals.

9.9. Unregulated Activity – Issues round site security, arson, theft, vandalism and unregulated employee behaviour are not well explained and examples of documentation to control these events is not visible in the Working Plan.

9.10. Management Controls – Management Controls are not tabled alongside “Responsibility Charts”. This requires to be rectified and defined in an “Organisation and Arrangements” format. There is no clarity on which ‘party’ holds the responsibility for site safety. In our view this is fundamentally appalling and cannot be accepted for such a hazardous site.

9.11. Synergies of Pollutants – The Working Plan has not addressed the issue of synergies of pollutants and this could be catastrophic on such a site. Containment statements are not convincing or reassuring. Examples of synergies of pollutants exist with such materials as Diesel Fuel, Unspecified Flammables, Ethylene glycol, etc.

9.12.Inventories – There is no description of how inventory will be accurately controlled. Losses due to theft or other unregulated activity are practical realities. Descriptions are given of likely incoming material, but this is likely to deviate from actual quantities removed. In stock waste material inventories require control and measurement. Weigh bridges are to be provided but these only control quantities of waste leaving the site. In addition, controls over the number of waste movements must be regulated and this has not been adequately defined.

9.13.Communications – This is not addressed. If workers from out with the UK are present arrangements must be put in place to ensure that all communications are clearly understood, particularly relating to Health and Safety critical activities. Safety notices, obligatory statutory forms and effective managerial instructions have not been provided in the Working Plan.

9.14.Waste movements – Significant quantities of large-scale mechanical handling plant and lifting equipment is required in this type of waste handling activity. All plant and equipment should be fit for purpose, in good condition, used in a controlled manner and operated as designed.
The Working Plan makes no reference to these issues or the types of regulations to be followed. The LOLER and PUWER applications are not quoted.

The Working Plan fails to describe the need for Authorisation of Employees who will operate the required plant.

Outside contractors involved in waste movements, whether by road, rail or sea should be “Safety Passported”. Access, egress, parking and heavy lifting areas should all be clearly marked, and appropriately trained and authorised staff used to control all such activities.

The Working Plan fails to address these issues.

9.15.Health and Environmental Monitoring – Well controlled sampling, data gathering, and analysis of Occupational Health and Environmental factors is essential on a high hazard site such as this. It is required to control the potential dangers, to alert management to trends which require corrective action and to provide reassurance for employees, contractors and others.

Given the quantities of asbestos which will be present the hazards presented by airborne pollutants are very high. Clydeport Operations Ltd’s demonstrated record on this is poor and known to the Regulatory Authorities.

Health screening of operators at engagement should be carried out and a programme of routine testing agreed with the appropriate health professionals and then implemented.

Noise control is described in the Working Plan but there is no reference to the total noise levels expected. A baseline background noise survey should be used to set limits for the additional permitted noise levels.

The Working Plan makes no specific reference to the use of the correct Personal Protective Equipment by operators or visitors to reduce noise exposure.

9.16. Working at Height – This is not described in the Working Plan, but this is a problem for employees, as in the early stages of the decommissioning activity, Mobile Elevating Work Platforms won’t be effective so scaffolding and appropriate PPE will be required. These operations require specific training which again is not discussed in the Working Plan.

Clydeport Operations Ltd. have a very poor safety record in this area and have had fatalities and severe injuries associated with working at height on the Hunterston site. They have been prosecuted and found guilty for such deaths and injuries.

Examination of the RIDDOR statistics and legal case records will reveal these findings.

9.17. Demolition – Demolition of any existing structures on the site will require registration with the Health and Safety Executive and the application of the appropriate CDM regulations. This is not explained or discussed in the Working Plan.

9.18. In House Safety Rules – Safety rules by the organising company are not known and it is uncertain if there is a “Permit to Work” system or restricted work activity documentation. Hot Work permitting is mentioned in the Working Plan but detailed authorisation for plant and work activity is unknown.

9.19. Naturally Occurring Radioactive Materials – Applications for the shipment of NORM waste must be supported by an assessment of all practicable waste management options. This has not been described in the Working Plan. 500 tonnes of this material is to be held on site at any one time.

For NORM wastes, applicable radioactive waste policy is set out in the UK Low Level Waste (LLW) Policy9

In our view, given the large quantities to be handled, and which have been applied for in the Licence application, there is need for special examination and clearance procedures.

9.20. Safety Representatives and Safety Committees – Since it is projected that there may be up to 500 employees, under HASWA there should be safety representatives appointed and a safety committee commissioned. This is seen in the Courts as normal ‘Good Practice’.

No mention is made of this in the Working Plan.

9.21. Sale of Recovered Components – This is a well-known practice within the rig dismantling world. Items such as generators, fuel tanks, engines, gearboxes, propellers, sea valves, control rooms, instrumentation, cranes and hydraulic lifting devices etc. may be offered for sale as operational items.

These sales and movements of the items will involve third party purchasers operating in a myriad of transport means, which will cause problems to the transport infrastructure surrounding the site. This will potentially create an overload of the adjacent major road system which the Scottish Government already know is over desirable levels particularly through the adjacent village of Fairlie, where the road dimensions are below acceptable standards for heavy goods vehicles. No ready solution is available at this point in time to reduce the usage of the road system.

10.1. Sadly, the historic incident record shows that the Health and Safety performance has been very poor.

10.2. In our view, Safety inspections, visits by Safety advisors and the inspection of the worksite by the executive team have not been visible nor do they appear to be rostered.

10.3. As discussed, earlier Peel Ports’ Annual Reports have very brief safety sections, which do not contain any metrics, nor do they describe any meaningful Health and Safety commitments. The lack of such things as budgets for Safety initiatives, the seeking to achieve Safety Awards, and executive bonuses and advancement linked to defined Safety performance measures, demonstrate a lack of ambition in

Health and Safety attainment and indicate the inadequate Safety Culture of the Peel Ports organisation of which Clydeport Operations Ltd. has probably the worst Safety performance of all.

10.4. In the event of a catastrophic incident at the proposed Decommissioning site, an inquiry about the legal obligations and duties of Clydeport Operations Ltd. “Responsible Persons” and the Regulating Authorities would be severely tested about their ‘Due Diligence’ in sanctioning this activity. We believe that the approving authorities should seriously consider whether Clydeport Operations Ltd. is a ‘fit and proper organisation to carry out these operations. The injury accident and fatality rate demonstrated by Clydeport Operations Ltd. combined with the known problem of the national fatality rate of the waste handling industry in the UK, combine to produce a heady mix of potential disaster that is hard to swallow!

10.5. Fatal Accidents – There have been five fatal accidents associated with Clydeport Operations Ltd in the last ten years. This is in an organisation of only approximately 160 people. HSE figures show that in the UK as a whole the fatal injury rate per 100,000 workers has been flat at around 0.5. The rates for Clydeport in three of the last ten years have been as follows:

• In year 2007 a rate of 1875, in 2013 a rate of 625, in 2015 a rate of 625.

The legal statements issued by the Courts when handing down the financial penalties to Clydeport also highlight the poor Health and Safety attitudes of the company. All of these fatalities were preceded by similar incidents where only through good fortune no serious or fatal event occurred. However, the company ignored them and went on to have the fatal events in very similar circumstances.

10.7 Known Injury Accidents – The following are injury accidents known to us. There are likely to be many more of which we have no knowledge:

In 2001 a young operator fell around 90 feet.

In 2013, the week before a fatal accident, an operator fell into the coal hopper.

We have been unable to access the RIDDOR information for Clydeport Operations Ltd. and as a result cannot provide a comprehensive assessment of the incident and injury performance of the company.

10.8. Other Indicators of lack of management control:

Major fire at coal on-loader

Numerous fires in coal stockyard

Off-loader crane 72 metres high and weighing several thousand tonnes not secured and

blown along jetty, colliding with on-loader.

Operators observed bulldozing waste coal into Clyde instead of transferring it back to stockyard. Activity reported to management by local resident. Activity then stopped by management. Why was this overt activity not observed by management from the site control tower?

Coal dust dumped on Fairlie on several occasions due to poor operational control of off- loading activities at jetty. e.g. Crane operating at excessive speed. Unloading taking place during excessive wind speed conditions. Sections of dust containment shielding missing at hopper due to poor maintenance.

Fumes, including oxides of nitrogen, affecting the residential area of Fairlie due to uncontrolled spontaneous combustion of coal stored in stockyard. Response: it’s the type of coal from Russia! Real reasons apart from source are: Inadequate use of sampling prior to discharge from vessel, inadequate monitoring, and inadequate spray drenching of coal stacks.

Coal slurry escaping onto SSSI. Problem identified by local residents not management. Mitigation for slurry escape implemented by management inadequate and allowed to fall into disrepair.

Asbestos cement debris in SSSI and on rock armour site boundary accessible by public. Problem identified by local residents. No action taken by management.

No safety boat at jetty during current site demolition operations and which have included over-side working. See Notice to Mariners 67/18 which implies safety boat presence.

Pressure on Demolition Contractor during current demolition activity due to completely unrealistic time scales for the operation. Cesscon Decom the originally nominated Oil Rig Decommissioning Operator stated in publicity materials that their facility would be operational by quarter 4, 2018. This was then revised to quarter 1, 2019. Their publicity video shows the jetty in use so is dependent on removal of current equipment. Clydeport Operations Ltd. Notice to Mariners 67/18 suggests that activities required to remove assets at the jetty would last approximately 15 weeks commencing July 24, 2018. To date one of the large off-loader cranes has been partially demolished, a further complete crane and the on-loader remain to be tackled. Again, the timescale for the activity is completely unrealistic and can only result in unacceptable pressure on the demolition contractor.

Filthy coal lorries running on A78. No effective washing stations. Danger to the public from increased heavy goods traffic through Fairlie. Fatality to resident sitting in her own home due to truck crashing through house wall. Whole operation not what was laid out in formal documentation which indicated coal would be transported by rail at this site.

No notification to emergency services, local authority or local residents of large explosions during demolition of heavy plant in coal stockyard demolition activity. Large concerns raised given proximity to Hunterston Nuclear Stations.

Navigation Lights out on the deep-water jetty which is deemed to be of ‘Strategic National Importance.’ Failure reported to Estuary Control by local resident. Eventually a Notice to Mariners issued advising problem. Lights never fixed. Clydeport Operations Ltd. Is the Port Authority.

Hundreds of tonnes of coal present under the jetty at the terminal from spillages and poor work practices.

Acidified water in suds ponds on the coal stockyard site is leaking into the SSSI.

Current demolition activity at site and jetty should have been considered through an EIA process. Not clear that CDM notification took place to cover Health and Safety aspects. Screening process took place retrospectively, months after start of work.

Enforcement action taken by HSE during current demolition activities as a result of external concerns being expressed regarding unsafe practices.

This is a list compiled by independent locals observing the behaviours of Clydeport Operations Ltd. from Page | 12

the outside. Imagine the list which could be created by trained safety observers on the inside who had a good rapport with the operators doing the work!

Summary of Conclusions

1) This is an extreme high-risk site.

2) The proposed quantities of toxic waste in are extraordinarily high.

3) No risk assessment is available.

4) Clydeport Operations Ltd. Working Plan is deficient

5) The Hunterston site operators are not known nor are the duty-holders.

6) The Clydeport Operations Ltd. managerial control structure is not clear.

7) The competence of the named companies and their representatives is challenged.

8) No documentation is visible about the movements and monitoring/control of special waste from the site to re-processors.

9) The local residents have a just cause to be concerned about this proposed operation and its operators.

10) Political aspirations for job creation should not interfere with the legalities of planning, licensing and health and safety law. This principle is enshrined in our democracy and in the separation of the executive from the judiciary.

The negative EIA screening opinion has been affected by Peelports and planning authorities’ repeated insistence that development will not directly infringe the SSSI.

It is widely accepted that the surveying techniques that are used to determine Ordnance Survey tidelines are inadequate and do not properly represent Mean Low Water springs.

In Scotland, the current Mean Low Water Springs is the legal cadastre. This tideline is used as the Local Authority jurisdictional boundary and is the seaward limit for marine SSSIs.

Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.

Peelports are committing offences under both the Town & Country Planning and Marine Scotland Acts in providing misleading information in planning documents.

1. Peelports have provided misleading information to the planning and environmental authorities, repeatedly insisting that the development will not infringe the SSSI, in order to achieve a negative EIA screening opinion.

During the EIA screening process Peelports have repeatedly stated that:

“no significant direct impact on SSSI” (Cormack & Fleming 2012)

“avoids encroachment in to the SSSI” (Cormack 2017a & 2017b)

“proposed development is outside the SSSI” (Cormack 2017a & 2017b)

“No direct impacts on the SSSI are anticipated with dredging activity taking place out with the SSSI” (Cormack 2017a & 2017b)

“As the proposed development is out with the SSSI, direct impact is considered unlikely, although post dredging siltation may settle within the SSSI” (Cormack 2017a & 2017b)

“blanking of sensitive benthic communities and the eelgrass beds within the SSSI (>1km away) is therefore considered to be highly unlikely” (Cormack 2017a & 2017b)

Marine Scotland and SNH accept “the proposal could adversely affect natural heritage interests of national importance”, but have provided a negative EIA screening opinion, in part because they were mislead by Peelports and told that the SSSI would not be directly impacted by development. They have stated:

“no dredging within the SSSI” (Bland 2012 ).

“no additional impacts to the SSSI” (Walker 2016).

Using reserved planning powers, NAC planners provided a negative screening opinion, on the basis of information submitted by Peelports. The planning committee and Council are mistaken in their belief that the SSSI will escape direct impacts. They have stated in planning application responses:

The applicant has confirmed that no dredging would occur or be deposited within the SSSI (Yeomans 2018a & 2018b)

The overall integrity of the SSSI would not be compromised (Yeomans 2018a & 2018b)

“We know the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work” (Wheelhouse 2018)

“Marine Scotland state that any potential impacts can be identified and mitigated during the marine licensing process without requiring the support of a full EIA” (Gibson 2018)

“The dredge pocket at the hammerhead quay is designed with a stable 1:6 dredge slope which avoids encroachment into the SSSI” (Gibson 2018).

2. It is widely accepted that historic surveying techniques used to determine OS tidelines are inadequate and do not properly represent Mean Low Water Springs datum.

The Ordnance Survey tidelines that have been adopted by developers, planning and environmental authorities provide an inadequate representation of Mean Low Water Springs around the proposed Hunterston development. This is accepted by marine planners and it is normal practice for developers to survey coastal development sites. All parties are currently relying on proxy based tidal datum generated in the 1960s before the Hunterston construction yard was ever reclaimed from the sea.

Sutherland (2012) conducted extensive research on errors involved in Ordnance Survey tideline mapping. The positional accuracy for tide line capture is constrained by the precision and stability of the feature being measured. Tidal marks that lie on unconsolidated material such as mud or sand may be subject to frequent vertical and horizontal movement resulting from erosion or accretion.

Tidal marks on shallow sloping surfaces are prone to significant changes in horizontal position as a result of a small change in tidal height. (Fitton 2017, Ruggiero 2003 & 2009).

Ordnance Survey reported problems in matching the OS topographic representation of MHW line and MLW line and the UKMO depth area polygon, concluding that their maps do not have a clean and coherent MLW line. Therefore, judgement must be used in analysing even the most recent digital maps which utilise outdated tideline information gathered using what are now considered inappropriate survey techniques (Ordnance Survey; 1882, 2003, 2004, 2006)

Mean Low Water Springs mark, and hence Extent Of the Realm is subject to continuous change but the captured alignment of a tide line (in Ordnance Survey products) is a snapshot on one day. It is not practical to revise tide lines very frequently (Edina A) and must be used with caution.

A variety of modern survey techniques were used to determine errors in Ordnance Survey datum at Millport and indicated considerable changes in datum since the 1962 MLWS OS survey (Seet Poh Aik 2002).

Isostatic re-balance in the Hunterston area has been estimated to be 1.4mm per year (Shennan 2009), which equates to 56 cm that the land has uplifted in the 40-odd years since OS tideline was last surveyed.

There is an extensive body of literature that supports the need for up-to-date mapping of marine boundaries and inadequacy of Ordnance Survey datum to properly describe the Mean Low Water Springs tideline. A recent response from Ordnance Survey to a Marine Scotland consultation highlighted the need for revision of tideline boundaries (Snell 2011). The use of Ordnance Survey maps and datum, by government authorities, are a function of mapping agreements with the Scottish Government and understood that they cannot be relied on to accurately determine the level of Mean Low Water Springs. This is particularly relevant for coastal marine construction proposals in highly dynamic sedimentary environments like Southannan SSSI.

Southannan Sands SSSI is located within Sub-cell 6B2 of the Ayrshire Coastal Management Plan. The policy for shoreline protection recommends an Advance The Line policy and recommended that “The effect of this on the sediment regime within sub-cell 6b2 will require careful study prior to implementing any works, however this area has already been shown to be accreting thus a policy of advance the line is equitable with its present status“. Further modification of the coast in this sub-cell are stated to have: “Potential significant negative impacts to the Southannan Sands SSSI and on local habitats from construction or rehabilitation of hard defences and reclamation of land” (RPS 2018).

It is incredulous for developers to offer, and planners to accept, marine planning proposals and drawings that use historical (1960’s) tideline datum from the era before the Hunterston construction yard was reclaimed from the sea. It is clear to anyone that actually visits the site that the level of Mean Low Water Springs is significantly different from what is being offered by Peelports. Peelports are aware of the real tide levels around Hunterston but have suppressed this crucial information to elicit a negative screening opinion from planning and environmental authorities.

3. It is accepted by Scottish Law Commission and various Acts that Mean Low Water Springs is the tideline used for Local Authority jurisdictional boundaries and is the seaward limit for marine SSSIs.

The cadastre and legal seaward boundary, in Scotland, for Local Authority jurisdiction is the current seaward extension of the Mean Low Water Springs tideline (Hansom 2017).

The seaward planning boundary for marine SSSI’s, in Scotland, is the Mean Low Water Spring mark – equivalent to the Local Authority jurisdictional area (JNCC a&b).

The planning and licensing process that has been offered by Peelports has been progressed to subjugate terrestrial and marine planning regimes but is based on an inaccurate Mean Low Water Springs mark.

NAC have taken authority of land planning issues down to the MLWS tideline and Marine Scotland have stated that, in this case, they will be responsible for planning and licensing issues below the MLWS tideline.

Peelports are aware that the SSSI bounds all sides of construction yard apart from West facing aspect (Fleming 2016).

Peelports accepts that SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b).

The physical and current Mean Low Water Spring tideline marks the North Ayrshire Council jurisdictional boundary and seaward limit of the Southannan Sands SSSI.

North Ayrshire Council planners are incorrect in their assumption that the 1960’s Ordnance Survey datum tideline forms the local authority jurisdictional boundary. The council have actually created their own precedence and have already accepted the 2018 MLWS jurisdictional boundary in a recent planning application (17/01005/PP). This planning application involved the expansion of an oyster farm below the 1960’s Ordnance Survey datum tideline but was above the current 2018 MLWS tideline. The NAC Report of Handling accepts that the zone for oyster farm expansion forms part of the Fairlie Sands (northern compartment of SSSI) and located within their jurisdictional intertidal foreshore zone.

4. Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.

There is a high degree of certainty that the proposed hammerhead quay dredge pocket will directly impact the Southannan SSSI. We have conducted numerous surveys in the area. These surveys have used a variety of GPS devices, during different weather conditions (wind direction & air pressure), and have been calibrated using tidal information from the nearby National Tidal & Sea Level Facility tidal gauge at Keppel Pier. We have calculated that 18,385 m2 of SSSI will be directly impacted by the dredge pocket.

Peelports are aware that the SSSI extends out to MLWS and the limit of local authority boundary (Cormack 2017a & 2017b).

Peelports are aware that dredging at hammerhead quay will take place above the MLWS tideline (within NAC jurisdiction and legal boundary of SSSI). This is evidenced in their own reports (Webley 2012, Anon 2018) where they have published the MLWS level for Hunterston area is 0.4m above admiralty chart datum.

5. Peelports are committing offenses under Town & Country Planning and Marine Scotland Acts by providing misleading information in planning and supporting documents.

All the site drawings and other plans submitted by Peelports, in planning applications, are misleading, as they do not show the current Mean Low Water Spring tideline. Readers are left with the assumption that the depicted tideline represents the current NAC jurisdiction and SSSI boundary. Also, they make no reference to the datum that is used on their diagrams.

It is common knowledge that the level of Mean Low Water Springs at Hunterston is 0.4m above chart datum. Indeed, Peelports are aware of this and have cited this information in supporting documents. Admiralty Charts of the area indicate the intertidal area to be dredged beside the quay is 0.4-0.5m above chart datum and therefore located within the NAC and SSSI boundary.

The sea level information presented on developer’s technical drawings is incorrect and misleading and does not correspond Hunterston tidal information.

Peelports own reports actually indicate the real level of MLWS but information has been suppressed:

The environmental consultant’s Intertidal Survey Report was submitted alongside their Environmental Review to support a ‘negative screening decision’. Scrutiny of these documents clearly indicate that the Developers are aware that MLWS is 0.4m above Chart Datum and that an area of SSSI will be dredged.

On the day (3/5/12) that the environmental consultants chose to conduct their intertidal survey, the lowest the tide that day was predicted and recorded as 0.4m. Normally, intertidal surveys are best conducted during periods of spring tide and no reason was offered in the report why the survey was conducted near the neap tidal range.

Data Source: National Tidal Sea Level Facility. Tidal levels on the day of intertidal survey 3/5/12 not less then 0.4m

The consultants and developers accept that the SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b)

The consultants provide photographs in the report that show the intertidal sands area immediately beside the quay. The sea level in the report photographs cannot be less than 0.4m and at the level of MLWS on the day of survey.

This means that the sandflats in the photographs are above the level of MLWS and are located within the jurisdictional boundary of NAC and form part of the SSSI. The environmental consultants. Peelports are aware that this area will be destructively dredged.

The Peelports photograph (below) provides smoking gun evidence that the developers are wilfully misrepresenting, and have full knowledge of actual, MLWS sea levels around the Hunterston construction yard and that the SSSI will be dredged, contrary to information they presented to elicit a negative screening opinion.

The developers have modified satellite/aerial imagery in planning and supporting documents that misleads the true extent of the sand flats, and the area of SSSI around the Hunterston construction yard.

The photograph on the left (above) provides a realistic interpretation of MLWS around the development site. The photograph on the right has been overlaid with the inaccurate, Ordnance Survey Datum derived, GIS shapefile that provides misleading representation of sand flats at Hunterston.

Conclusion

It is an offence under the Nature Conservation (Scotland) Act 2004 to intentionally or recklessly damage any natural feature specified in a SSSI notification. The notified features of Southannan Sands SSSI are: Biological, Intertidal marine habitats and saline lagoons: Sandflats. Development threat to these SSSI features and/or threat to the OSPAR listed Priority Marine Features are considered a significant impact of national scope. Any direct threat to the SSSI or PMF’s should trigger a mandatory EIA.

The Developers have continually insisted that there will be no infringement to the SSSI. This was accepted in good faith by planning and environmental authorities and used to justify the negative EIA screening opinions. It is clear to anyone that visits the site during the period of MLWS tides that the proposed dredging activity will directly, and destructively, impact the SSSI. These concerns have been expressed and indicated on site visits with SNH Area & Policy Officers, Chair of Clyde Marine Spatial Planning Partnership, NAC Local Authority Councillor, but no actions have yet been progressed. We have also informed NAC planning and legal officers but have had no response. All public bodies and officers are reminded that under the Nature Conservation Act 2004 they have a duty to further to conservation of biodiversity and prevent destruction of the SSSIs notified features.

It is clear from the developers planning and supporting documents that they are fully aware that the historic MLWS level they have offered on planning documents does not coincide with the NAC jurisdictional and seaward boundary of the SSSI. We have been told by Scottish Government Ministers that “the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work”. However, we would like to reiterate to all authorities that Peelports have and continue to suppress key environmental information that has directly influenced EIA screening decisions and continue to systems game the planning process.

We believe there has been and continues to be a systemic and manifest breach of EIA Legislation which is wholly contrary to the Scottish Government’s stern commitment to uphold European environmental legislation. We also believe that there will be breaches of the Nature Conservation (Scotland) Act 2004 and international OSPAR agreements.

Peelports have wilfully offered misleading information, which has without doubt changed the course of EIA screening and planning outcomes. Material misrepresentation and omitting vital environmental information can be considered an offence under various Town & Country Planning, Marine Scotland Acts and related regulations. We are aware that Peelports may now amend documentation for marine license applications. We believe it would be incredulous for authorities to progress or for applications to be further massaged through the application of planning conditions to concord with planning and environmental regulations.

Recommendations

Peelports must be investigated for submitting misleading documentation and for offences under Town & Country Planning Act, Marine Scotland Act, Nature Conservation Act and other regulations.

North Ayrshire Council and/or Ministers must call-in the existing planning applications, reconsider and reapply EIA screening procedures and implement a full Public Enquiry.

Marine Scotland should advise that, due to substantial material change, a full consultative EIA is now required for the whole Hunterston PARC development.

SNH should properly review the natural heritage features at the SSSI. And to include SSSI notification external to the current 2018 MLWS baseline.

JNCC A, Guidelines for the selection of biological SSSI’s [Online] Available at http://jncc.defra.gov.uk/pdf/SSSIs_Chapter01.pdf

JNCC B, Defining ASSI/SSSI with ‘Marine Biological Components’ and setting out a process for determining their contribution to the UK MPA network. [Online] Available at http://jncc.defra.gov.uk/pdf/Defining%20SSSIsASSIs%20with%20marine%20components_final.pdf

National Tidal and Sea Level Facility (2017) Definitions of tidal levels and other parameters [Internet]. Available from: (http://www.ntslf.org/tgi/definitions).

Councillor Alex Gallagher refused to read out his written answer to a question asked in the North Ayrshire Council meeting on 19/09/18. The part he refused to read out included a statement where he said that there will be “No Infringement to the SSSI” from the proposed developments at Hunterston PARC. We believe this to be factually incorrect! There has been lots of different types of ‘infringement’, which we highlight as an ongoing ‘Manifest breach of EIA Legislation‘. We present clear evidence below that the development will in-fact spatially infringe the SSSI.

The information below indicates that NAC planners have neglected to inform themselves of the real NAC planning jurisdiction boundaries to or seaward limit of the SSSI site. Instead they seem to be relying on developers documents, incorrect baseline datum, out of date GIS shapefiles and failing to comprehend that dynamic maritime boundaries actually change over time. Our group has visited and examined the boundary of the SSSI three times in last two months. We will now instruct an independent professional surveyor and invite the national media to visit, witness our survey and contemplate the environmental impacts and infringement to the SSSI.

The North Ayrshire Council’s area of planning jurisdiction coincides with the seaward limit administrative boundary. In Scotland this is accepted by the Scottish Law Commission as the Mean Low Water Spring (MLWS) tide level. The seaward limit of marine SSSI’s also coincides with local authorities jurisdiction boundary, which the Joint Nature Conservation Committee accepts is the Mean Low Water Spring tide level and provided for in the Nature Conservation Act 2004 legislation.

The sea level indicated on the NAC planning drawings, although written as MLWS, actually corresponds to Ordnance Survey Mean Low Water (MLW) levels. This peculiarity is evident on some of the planning documents which reference Ordnance Datum, yet have ‘MLWS’ written beside the lines drawn on the location plan drawings. We believe this is an error and ‘MLWS’ has been incorrectly added to the drawings submitted to NAC planning.

Fairlie Coastal have surveyed the area of SSSI and the Mean Low Water Spring tide level and found it to be very different from the level offered on the NAC planning and site drawings. In the photograph below you can see the group standing at the edge of the tide next to the hammerhead quay. The metadata from this photograph indicates it was taken on 15/08/18 at exactly 10:00am BST. We are able to precisely calculate tide levels and are extremely confident that the group are standing next to the real MLWS tide level.

The graph below shows the predicted and recorded tidal curves measured at the National Tidal & Sea Level Facility tidal gauge located at Keppel Pier on Cumbrae. There is little difference in tidal heights and time between Keppel Pier and Southannan SSSI. We have drawn a line on the graph to highlight the time (10am) and corresponding height of tide of 0.4 metres above chart datum. The calculated level of MLWS at Southannan SSSI is known to be exactly 0.44 meters above chart datum. The group are therefore standing within 4cm of the tide level that should be used as a jurisdictional boundary by North Ayrshire Council and as the seaward boundary for the Site of Scientific and Special Interest.

Please compare the Google Earth picture below that has proposed dredge area indicated by white lines. We have used GIS to locate the position of the group on the Google earth map. Remember, in the photograph above we are standing at the real level of MLWS (Mean Low Water Springs) which means that we are standing on SSSI ground and within the NAC administrative and planning area.

We have visited this location during periods of different wind, weather and atmospheric conditions and results remain consistent. We have also indicated this anomaly to the chairperson of the Clyde Marine Planning Partnership and to various SNH Officers. Cllr Alex Gallacher and the head of legal services Andrew Fraser were both informed about these findings at a recent Participatory Planning meeting but remain complacent and dismiss our concerns.

This evidence is contrary to Cllr Alex Gallagher’s written statement and assertion, that he refused to verbalise in full council meeting, that there will be no infringement on the SSSI. It is clear to anyone that actually visits the location, when the tide is at MLWS level, that the development activity is on and will directly impact the SSSI. We challenge all our elected councillors and NAC planners to visit the site with us and use their eyes instead of ticking boxes and pushing bits of paper around. It is incredulous for NAC to take planning decisions without an adequate baseline survey or without anyone actually visiting the SSSI.

These findings indicate that development works for the hammerhead quay will be conducted above the MLWS level and within the planning area for NAC. Due to project salami slicing this part of the development has been bounced off to Marine Scotland for considering under marine works license when it should also have been considered to have a terrestrial NAC planning jurisdiction component.

Cllr Gallchaer insists that planning process has been “robust” and there will be “no infringement of the SSSI”. However, all planners in Scotland, as part of their training, should be made aware of the discrepancies in sea level baseline datums and that the Scottish Courts and case law support that Mean Low Water Springs (MLWS) is used as the jurisdictional boundary when considering terrestrial and marine planning issues.

There is little doubt that the development will directly effect and infringe the SSSI which will be will heavily impacted by dredging, pier development and future operational activities. Our concerns are continually dismissed but will continue to argue that there is a systemic and Manifest Breach of EIA Legislation.

The Southannan Sands SSSI is notified for its sand flat features and designated under Nature Conservation Scotland Act (2004). It is protected by law and North Ayrshire Council will be committing an offence for any person to intentionally or recklessly damage the sand flat features. And under the same act, it is the duty of every public body or office-holder, in exercising any function, to further the conservation of biodiversity